A decision of the EPO may be, but ought not to be, given in a document which in form appears to be merely a communication (J 8/81, OJ 1982, 10). Whether a document issued by the EPO constitutes a decision or a communication depends on the substance of its contents, not on its form (see e.g. J 8/81, OJ 1982, 10;J 26/87, OJ 1989, 329; J 43/92, T 222/85, OJ 1988, 128, T 713/02,J 14/07andT 165/07). The criterion of substance has to be assessed in its procedural context (see T 713/02, OJ 2006, 267). The decisive question was whether the document at issue, when objectively interpreted in its context, could have been understood by its addressees as a final, i.e. not merely preliminary, and binding determination of substantive or procedural issues by the competent organ of the EPO.

InT 222/85 (OJ 1988, 128) the board noted that the contents of a "communication" never constituted a "decision". This distinction was important, because only a "decision" could be the subject of an appeal ­ see Art. 106(1) EPC 1973. In the case at issue the communication only represented a preliminary view, on an ex parte basis, and was not binding upon the department of the EPO which sent it. In contrast, the contents of a "decision" were always final and binding in relation to the department of the EPO which issued it, and could only be challenged by way of appeal.

In T 999/93a notification of the decision of the Examining Division in writing was never prepared; the annex to the minutes of the oral proceedings - although containing reasons - could not validly fulfil the function of a decision in writing since it did not bear any name or signature. It was not possible to see from it that it was made by the examiners who were appointed to the particular examining division responsible for the oral proceedings. If a decision of a particular division is to be legally valid, it must have been written on behalf of and represent the views of the members who were appointed to that division to decide the issues forming the subject of the decision, and it must bear signatures which indicate this (see T 390/86, OJ 1989, 30).

In J 14/07 the board held that the communication refusing the request for reimbursement of 50% of the examination fee constituted a decision within the meaning of Art. 106(1) EPC 1973, even though it was not signed since the formalities officer was competent to decide on the request for reimbursement of the fee (R. 9(2) EPC 1973 in conjunction with the Notice from the Vice-President of Directorate-General 2 of the European Patent Office dated 28 April 1999 concerning the entrustment to non examining staff of certain duties normally the responsibility of the examining or opposition divisions, OJ 1999, 504). See now Decision of the President of the European Patent Office date 12 July 2007 (OJ 2007, 106). See also 4.5.3 a) below.